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Unlawful Possession of a Firearm by Felon
Texas Penal Code § 46.04 FELON POSS FIREARM
Unlawful Possession of a Firearm
In the State of Texas, possession of a firearm is a criminal offense that is governed by Penal Code 46.04. This law makes it illegal for certain individuals to possess a firearm including felons, those who have been convicted of a crime involving family violence, and those who are subject to a protective order.
Felons who have been convicted of a crime punishable by imprisonment for a term exceeding one year are generally prohibited from possessing a firearm in Texas. However, there are some exceptions to this rule.
Possession of a Firearm with a Felony Conviction
If you have been convicted of a felony in any state or under federal law, you may not possess a firearm in Texas pursuant to the following rules:
(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described above, at any place other than where that person lives.
Possession of a Firearm with a Family Violence Conviction
If you have been convicted of a misdemeanor offense that involved the court making a finding of family violence in any state or under federal law, you may not possess a firearm in Texas before the fifth anniversary of the later of:
(1) the date of the person's release from confinement following conviction of the misdemeanor; or
(2) the date of the person's release from community supervision following conviction of the misdemeanor.
Possession of a Firearm While Subject to a Protective Order
If a court has issued a protective order preventing you from contacting a household or family member, you may not possess a firearm after receiving notice of the order and before expiration of the order.
Defenses to Unlawful Possession of a Firearm
There are several legal defenses that may be raised in response to a charge of possession of a firearm in the State of Texas. Some of the most common defenses include:
Lack of possession: In order to be found guilty of possession of a firearm, the prosecution must prove that the defendant had actual or constructive possession of the firearm. Actual possession means that the defendant had direct physical control over the firearm. Constructive possession means that the defendant had control over the area where the firearm was found, even if they did not have the firearm in their immediate physical possession. If the prosecution cannot prove that the defendant had possession of the firearm, they may not be found guilty of the offense.
Lack of knowledge: Another defense to possession of a firearm is lack of knowledge. If the defendant did not know that the firearm was present, they may not be found guilty of possession. For example, if the firearm was found in a car that the defendant was driving, but they did not know that it was there, they may be able to raise this defense.
Exemption: There are certain exemptions to the prohibition on possession of a firearm in Texas. For example, law enforcement officers and military personnel may be exempt from the prohibition on possession of a firearm. If the defendant falls within one of these exemptions, they may be able to raise this defense to the charge.
It is important to note that these are just a few examples of the legal defenses that may be raised in response to a charge of possession of a firearm in Texas. The specific defenses available will depend on the facts of the case and the applicable law.
Federal Law Considerations
In addition to the restrictions on possession of a firearm that are set forth in Texas state law, there are also federal laws that may impose additional restrictions on the possession of firearms. These federal laws apply throughout the United States and may impose stricter penalties for possession of a firearm in certain circumstances.
Under federal law, it is generally illegal for anyone who has been convicted of a crime punishable by imprisonment for a term exceeding one year, known as a "felony," to possess a firearm or ammunition. This includes individuals who have been convicted of a state or federal felony, as well as those who have been dishonorably discharged from the military.
There are some exceptions to this rule, such as for law enforcement officers and individuals who have had their civil rights restored by the state in which they were convicted. However, for most felons, possession of a firearm is strictly prohibited under federal law.
In addition to the prohibition on possession of a firearm by felons, there are also federal laws that prohibit possession of a firearm by individuals who have been convicted of certain other crimes, such as domestic violence offenses, or who are subject to certain types of protective orders. These laws may impose additional restrictions on the possession of firearms beyond those that are set forth in state law.
It is important to be aware of both state and federal laws regarding possession of a firearm, as violating these laws can result in criminal charges and possible imprisonment.